52 So. 473 | Ala. | 1910
Appellees sued appellant bank upon its own certified check, which was signed by one Helms as its cashier. The check was payable to J. J. & M. J. M. Lewis, and assigned and indorsed to plaintiffs. To the complaint the bank pleaded the fraud of the plaintiffs in procuring the check to be issued and assigned. This defense was attempted to be set up in a number of special pleas, numbered 9, 10, and 11. The fraud, in short, was that plaintiffs, or one of them, procured the check to be issued by false representations as to the security given or to be given to the bank to secure the loan made by the bank to the payees of the check, and, as part of the scheme to defraud the bank, had the check indorsed and-assigned to him. If the matters set forth in these pleas are true, and on demurrer they must be so treated, the plaintiff ought not to recover. They are perfect and complete answers to the complaint, and demurrer thereto could not properly be sustained.
To pleas 9, 10, and 11, plaintiff replied that, after the check was transferred and assigned by him, in consider
There was no attempt to state facts to show that plaintiff was a bona fide purchaser of the check. Certainly Byrd, if he was acting as cashier for the defendant bank, in taking a mortgage from the Lewises to secure the loan, could not thereby estop the bank from setting up the fraud of plaintiff in procuring the loan originally and in having the check transferred to him. It would, indeed, be strange if a party who is thus defrauded should be estopped from setting up the fraud as against the very party who perpetrated it, because his agent tried to indemnify the principal against loss on account of the fraud.
Under some conditions the bank might be liable to the Lewises, though it was not liable to plaintiff, and if the Lewises were willing to secure the bank, directly or indirectly, for the loan, it was of no concern to the plaintiff, who, if the pleas were true, had attempted to defraud the bank by making false and fraudulent statements to its acting cashier, Helms, in the absence of its regular cashier, Byrd. If the pleas are true, Byrd knew
It follows that the court was in error in overruling the demurrers to these replications, and the judgment must be reversed and the cause remanded.
Reversed and remanded.